Rama Shankar vs State of Punjab

Nirmaljit Kaur, J.—This is a petition u/s 482 Code of Criminal Procedure read with Section 320 Code of Criminal Procedure, Section 147 of the Negotiable Instruments Act for allowing the parties to compound the offence and for quashing the complaint No. 115 dated 12.11.2005 and subsequent proceedings arising out of the same.

Facts, in brief, are that the Respondent filed a complaint u/s 138 of the Negotiable Instruments Act alleging therein that the Petitioner had taken a loan of Rs. 90,000/- and the same was not returned. After recording of the evidence, learned Judicial Magistrate vide judgment dated 21.09.2007 convicted and sentenced the Petitioner to undergo RI for 2 years and also imposed a fine of Rs. 5000/-. Thereafter, the Petitioner preferred an appeal against the conviction order. However, the same was dismissed vide judgment dated 05.11.2009 passed by the learned Additional Sessions Judge, Sangrur. The Petitioner had also approached this High Court vide CRR No. 3137 of 2009. However, the said revision petition was dismissed vide order dated 08.12.2009. After upholding the order of conviction and sentence by this High Court, the Petitioner and Respondent entered into compromise and the Petitioner paid the entire amount due to the Respondent.

The issue involve herein is as to whether the present petition u/s 482 Code of Criminal Procedure can be entertained for compounding of offence after passing of the conviction order and dismissal of the appeal.

Admittedly, no SLP has been filed by the Petitioner.

Hon''ble the Supreme Court in the case of Cochin Hotels Co. (P) Ltd. and Ors. v. Kairali Granites and Ors. reported as 2006 (2) RCR (Cri) 333, in some what similar circumstances, allowed the compounding of offence and set aside the order of conviction and sentence. Similar order was also passed by the Apex Court in the case of K Subramanian v. R Rajathi Rep. By POAP Kaliappan reported as 2010 (1) RCR (Cri) 184, in para 5 of the judgment, reads as under:

The Trial Court by judgment dated September 21, 2004 convicted the Petitioner u/s 138 and sentenced him to Simple Imprisonment for one year and fine of Rs. 5000/- in default Simple Imprisonment for 3 months. Feeling aggrieved, the Petitioner preferred Criminal Appeal No. 107 of 2004 before Sessions Court which was dismissed on 24.12.2004. Thereupon, the Petitioner filed Criminal Revision Application No. 179 of 2005 before the Madurai Bench of Madras High Court which was dismissed on January 30, 2008. Therefore, the Petitioner filed SLP (Crl) No. 6974 of 2008 @ CRL.M.P. No. 14586 of 2008 which was also dismissed on September 11, 2008. Thereafter, a compromise was entered into and Petitioner claims that he has paid Rs. 4,52,289/- to Respondent. In support of this claim, the Petitioner has produced affidavit sworn by him on December 1, 2008. The Petitioner has also produced affidavit sworn by P. Kaliappan, Power of Attorney holder of R. Rajathi on December 1, 2008 mentioning that he has received a sum of Rs. 4,52,289/- due under the dishonoured cheques in full discharge of the value of cheques and he is not willing to prosecute the Petitioner. The Learned Counsel for the Petitioner states at the bar that the Petitioner was arrested on July 30, 2008 and has undergone the sentence imposed on him by the Trial Court and confirmed by Sessions Court, High Court as well as by this Court. The two affidavits sought to be produced by Petitioner as additional documents would indicate that indeed a compromise has taken place between Petitioner and the Respondent and the Respondent has accepted the compromise offered by Petitioner pursuant to which he has received a sum of Rs. 4,52,289/-. In the affidavit filed by the Respondent a prayer is made to permit the Petitioner to compound the offence and close the proceedings.

In the present case, the matter has been compromised.

Complainant, who is present in Court has filed his affidavit dated 07.03.2011, stating therein, that the matter has been compromised and he has no objection if the complaint filed by him and consequential proceedings be quashed.

Section 147 of the Negotiable Instruments Act reproduced as under:

Offence to be compoundable - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), very offence punishable under this Act shall be compoundable.

Reliance has been placed on the judgment passed by this Court in the case of Ritesh Gupta v. State of Punjab and Anr. 2009 (3) R.C.R (Cri) 61, whereby, this Court has relied upon the judgment of Apex Court in the case of 2000 (1) OLR 400 (SC) , wherein, the Apex Court was pleased to allow the accused and the complainant to compound an offence u/s 138 of the Act despite conviction and sentence having been held by three Forums. In view of the compromise, the conviction and sentence u/s 138 of the Act was annulled.

Hon''ble the Supreme Court in the case of Mrs. Shakuntala Sawhney Vs. Mrs. Kaushalya Sawhney and Others, , held that:

No embargo, be in the shape of Section 320(9) of the Code of Criminal Procedure or any other such curtailment, can whittle down the power u/s 482 of the Code of Criminal Procedure.

In view of the above, the present petition is allowed and the order of conviction and sentence dated 21.09.2007 passed by the JMIC, Malerkotla is set aside. Accordingly, the Petitioner is allowed to compound the offence. The Petitioner is ordered to be released forthwith.